#defahmi, Twitter Activism And Defamation

The facts of the case were that Fahmi tweeted something about the way BluInc (a magazine company) unfairly treated an employee in January. A few hours later, he tweeted an apology.

BluInc said it was not enough, and sued him for an unspecified amount of damages and for an apology in major newspapers.

They settled the case by requiring Fahmi to tweet an apology 100 times in a span of 3 days.

Defamation and freedom of expression

It’s an unusual and I think, innovative settlement to a case of defamation. This is because the law of defamation has been increasingly used in many countries, Malaysia included, to silence critical speech on the internet. Especially where there is no specific law that criminalises / censors / prohibits freedom of expression online. Or when the law is vague, or difficult to establish in court, or if there is in fact a constitutional / legislative guarantee to freedom of expression and opinion with strict limitations.

It has been so problematic and widespread that it actually became a recommendation by the UN Special Rapporteur on freedom of expression – who is incidentally reporting at the current session of the Human Rights Council – for States to decriminalise defamation as it presents an unfair / unwarranted form of restriction to the exercise of the right to freedom of expression and opinion on the internet.

In Malaysia, we have both civil and criminal forms of defamation. Criminal defamation is in the Penal Code and carries a penalty of imprisonment up to 2 years, or a fine, or both. Tenaganita was charged for criminal defamation in 1995 for their report on the conditions and deaths at immigration detention centres in Semenyih and other places. In 2008, another online media hacktivist that rose to infamy, Raja Petra, was charged with 3 counts of criminal defamation for the whole Rosmah and Altantuya statutory declaration debacle in 2008.

Civil defamation is covered under the Defamation Act. I glanced through it and can’t see an actual limit or figure to the amount of damages that can be claimed, although there are a lot of conditions, limitations and ways to establish damages and liability, including exceptions. But in a landmark case in 2000, the Federal Court ordered a freelance journalist and two others to pay Vincent Tan (of Berjaya and theSun) RM7 million in damages.

I’m not an expert in the law of defamation. Gathering some of the above, Fahmi could potentially have been made to pay copious amounts of money. Not to mention legal fees, etc. It could come up to a LOT of money. So it’s a smart move to settle. And settling by way of an apology is actually getting off lightly. You said something; it’s not true, say sorry. Actually, BluInc should be commended for its willingness to accept this.

From settlement to punishment

But why ask for 100 tweets? It’s like what someone tweeted in response, macam Bart Simpson writing “I shall not show my butt” on the blackboard before every episode. Calling for 100 times in apology makes it sound childish, and unnecessarily punitive.

I’m guessing that it’s because of the transient nature of tweets. A tweet doesn’t last for a long time. It’s not like a blog that you can specifically link in perpetuity, potentially.

The currency of a tweet’s validity is ephemeral, only for a couple of minutes, seconds even, and it then disappears into the sea of other tweets that takes its place.

So in order to make the apology ‘real’, constant reminders for a reasonable period of time are necessary. They have to be sustained.

But following this logic, the original tweet that caused the whole furore of the defamation suit is likewise similarly transient. So actually, it’s going to be difficult to prove actual damage to reputation in the first place.

In that case, the 100 tweets of apology is actually unwarranted, and burdens the person who made the erroneous tweet unfairly. How many would have been enough? Who knows. It’s one of those tricky and unchartered territories of establishing justice, adequate redress and limitations in the online world that makes this case so damn interesting.

The tide of online outrage

Another shortfall of BluInc’s response was that they underestimated the interactivity and dynamism of the Malaysian online public.

The bloggers, tweeps and facebook-ers who grew up with Mahathir’s Wawasan MSC in their veins – and who’s comfortable – engaged and invested their frustration online. Those who do not have patience for ‘Big Guys’ who use laws that the Government also uses to punish or silence the ‘Little Peeps’ who proliferate on the www.

So what you had was a public relations disaster.

Tweeps voiced their outrage and protest in loud and hilarious (which is a great way to go viral) ways, laying claim to hashtags, subverting the point of defamation law by making all kinds of statements against magazines that BluInc publishes and other nonsensical things, including calling for boycotts and generally, sharing their unhappiness with BluInc.

BluInc could not have made a worse move to reinstate its reputation.

BluInc created a context that was ripe for the ‘Little Online Peeps’ to dismantle and break down the clearly identified ‘Big Guy’. Whichever way you look at it, no one likes to see a schoolteacher bully a student. And that’s the dynamics BluInc’s created with the 100 lines, oops, tweets of ‘sorry’.

In the meantime, the international media who is always sniffing for interesting stories, especially those about ‘Big Guys’ versus ‘Little Online Peeps’ (post-Tunisia and Egypt facebook euphoria, G8 talks and the UN Special Rapporteur’s reporting to the Human Rights Council), lapped it up and created another archetypal hero out of the whole thing.

The long and the short of it is, Fahmi’s reputation as an accidental hero for online free speech catapulted, and at the same time, BluInc’s reputation as the ‘Big Bad Guy’ was sealed.

Shame really. Because what BluInc chose to do by settling by way of tweeting in apology was a good call. It’s innovative and fair. It does not create a chilling effect by the threat of million ringgit lawsuits.

Governments and many other corporations throughout the world can actually learn a valuable lesson from this approach.

Where BluInc went wrong was by feeling sufficiently confident to lean on the side of punishment, and increasing its severity. It was not enough that you said sorry, you had to be slapped on the butt.

I guess the lesson here is that the student is never alone. And never underestimate the canteen revolution that may come out of incidents like this one.

I just hope that this revolution does not bring back the multi-million ringgit caged cane.